Deville v. Marcantel

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 1, 2009

No. 07-31049 Charles R. Fulbruge III

Clerk

MICHELL B. DEVILLE; RICKY JAMES DEVILLE

Plaintiffs - Appellants

v.

LOUIS DALE MARCANTEL, individually and in his official capacity as Chief

of Police of the Village of Turkey Creek, Louisiana; DEWAYNE TARVER,

individually and in his official capacity as a duly commissioned law enforcement

officer of the Village of Turkey Creek, Louisiana; VILLAGE OF TURKEY

CREEK

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Louisiana

Before KING, DENNIS, and ELROD, Circuit Judges.

PER CURIAM:

Michell B. Deville (“Deville”) and her husband, Ricky James Deville,

appeal from the district court’s grant of summary judgment to defendants on

their § 1983 and state law claims, all of which stem from two separate arrests

of Deville in August 2005 and May 2006. They primarily assert that the

defendant officers arrested Deville without probable cause and used excessive

force, causing her to suffer substantial physical injuries, and that the Village of

Turkey Creek is liable as the officers’ employer. For the reasons set forth below,

we affirm in part and reverse in part, and remand for further proceedings.

I. BACKGROUND

The evidence, viewed in the light most favorable to plaintiffs, establishes:

On the evening of August 5, 2005, Deville, a 45-year-old registered nurse, was

driving with her two-year-old granddaughter through the Village of Turkey

Creek, Louisiana, on her way to Monroe, Louisiana, where she planned to return

her granddaughter to her daughter and spend the night. As she passed through

Turkey Creek, Deville set her car’s cruise control to 40 mph, which was the

speed limit. However, she noticed a police cruiser with its lights on behind her,

so she pulled to the side of the road, believing that it was merely attempting to

go around her. When the cruiser came directly behind her, Deville realized that

she was being pulled over. She moved completely off the side of the road and

stopped her vehicle.

Turkey Creek Police Officer Dewayne Tarver, a defendant in this case,

exited his cruiser and came to Deville’s driver’s side window. Tarver was in

uniform and Deville immediately recognized him as a police officer. Tarver

requested Deville’s name and driver’s license, which she provided. She also

asked why he pulled her over. Tarver responded that he “clocked [Deville]

speeding 50 on the hill,” 10 mph over the speed limit. Deville responded, “[T]hat

wasn’t possible; I had my cruise on 40.” Tarver again stated that he clocked her

at 50 mph and Deville responded “that it was bullshit.” Tarver asked for her

registration papers and, as Deville reached into her glove compartment to

retrieve the papers, she repeated that the stop was “bullshit.” Tarver then asked

her to step out of the vehicle, to which she responded, “I haven’t done anything

wrong” and did not comply with Tarver’s request to exit the vehicle. Tarver then

asked her again to step out of the vehicle and stated that he was calling child

services to pick up Deville’s two-year-old granddaughter. Rather than comply

with these instructions, Deville rolled her window up, and called her husband,

2

daughter-in-law, and son. Tarver walked back to his cruiser and called Turkey

Creek Chief of Police Louis Dale Marcantel.

Deville’s husband and son agreed to come to the location of the stop and

assist her with her granddaughter. Meanwhile, Chief Marcantel, who was off-

duty that evening, arrived at the scene, spoke with Tarver, and then approached

Deville’s driver’s side window -- which was still rolled up. Marcantel showed his

badge and spoke first, telling Deville that she “needed to get the window down

or he was going to break it.” According to Deville, Marcantel did not ask her to

exit the vehicle. Deville did not roll her window down, stating that she was

waiting for her husband to arrive and “see about my baby.” Deville recounted

that Marcantel began hitting the window and her car with a black stick (said to

be a heavy flashlight) and, even though she began to roll down the window, the

glass broke before she was able to do so. Notably, Deville contends that she

never saw a ticket, nor was she ever asked to sign one. The officers contend that

they presented a ticket to her, but that she refused to sign it.

According to Deville, at that point Marcantel grabbed her through the

window and opened the door, and “they” (presumably referring to Marcantel and

Tarver) pulled her out of the vehicle. The officers did not hit her, although they

threw her up against the vehicle, resulting in a blow to her abdomen area. She

was placed in handcuffs and led towards the police cruiser. Deville fell to the

ground on the way to the cruiser complaining of pain in her abdomen. The

officers lifted Deville up and placed her in the back of the cruiser; her husband

arrived shortly thereafter and took custody of the child.

Deville was taken to the Evangeline Parish Sheriff’s Office. One of the

officers had called an ambulance to meet them at the Sheriff’s Office, and Deville

initially refused medical treatment. Deville later requested treatment when she

noticed that she was bleeding from her head, and the ambulance returned and

transported Deville to the hospital. She was treated at the hospital, and a blood

sample was taken and submitted to the Louisiana State Crime Laboratory for

3

analysis. Deville’s husband and nurses at the hospital remarked that Marcantel

smelled like alcohol, implying that he was intoxicated. After Deville finished

at the hospital, she was taken back to the Sheriff’s Office and charged with

speeding, aggravated battery, and resisting an officer. She was released that

night. The parish district attorney subsequently dropped the charges against

Deville.

The toxicology report from the blood sample taken at the hospital showed

the presence of Phentermine and Sentraline (caused by Deville’s legal use of

prescription medications). Based on this report, Marcantel later sought and

obtained an arrest warrant from a justice of the peace against Deville for driving

while under the influence of a controlled substance and for illegal use of a

controlled substance in the presence of a minor.1 The warrant issued on May 18,

2006, nearly nine months after the first arrest and approximately the same time

Deville’s counsel sent a letter to the Village of Turkey Creek giving notice that

she would assert claims based on the first arrest. Deville was arrested pursuant

to that warrant on June 13, 2006, and released. Deville alleges these controlled

substance charges were baseless and motivated only by her threat of litigation

against Marcantel and the other defendants. The parish district attorney later

dropped these charges as well.

Defendants have a very different view of the August 2005 stop and arrest.

They claim that Deville was speeding (Tarver states that he clocked her going

10 mph over the speed limit using his radar gun), that she became enraged

during the stop, shouted obscenities at the officers, and refused to sign the

speeding ticket. The officers state they were concerned about the welfare of the

child, whom they felt was in clear distress as a result of Deville’s behavior.

Marcantel testified that he informed Deville that she was under arrest and

1

There is no evidence in the record that Marcantel knew when he sought the warrant

that the substances were prescribed to Deville. Indeed, Marcantel’s deposition testimony is

uncontroverted that Deville told the paramedics and hospital staff that she was not taking

prescription medication.

4

commanded her to exit the vehicle. This led to the officers’ forcible removal of

Deville from the vehicle, although Marcantel testified that the officers “didn’t

shove her, . . . didn’t push her, didn’t beat on her” and that Deville threw a cell

phone that hit Marcantel. The officers did not call protective services, however,

but released the grandchild to Mr. Deville when he arrived at the scene.

On August 24, 2006, Deville and her husband filed suit in Louisiana state

court against the Village of Turkey Creek, and Chief Louis Marcantel and

Dewayne Tarver, both individually and in their official capacities. Defendants

thereafter removed the case to the United States District Court for the Western

District of Louisiana. Plaintiffs’ complaint asserted claims under § 1983 against

Tarver and Marcentel based on unreasonable search and seizure, false arrest,

battery, excessive force, and malicious prosecution, the First Amendment, and

the Ninth Amendment, as well as a claim that Tarver and Marcentel conspired

to violate her civil rights in violation of § 1985. The plaintiffs also alleged § 1983

claims against the Village of Turkey Creek on the basis that it maintained

policies or customs exhibiting deliberate indifference to Deville’s civil rights.

Finally, the plaintiffs asserted claims under Louisiana law for assault, battery,

excessive force, false arrest, false imprisonment, and malicious prosecution (with

the Village of Turkey Creek vicariously liable). The officers raised qualified

immunity as a defense.

The Village of Turkey Creek moved for judgment on the pleadings under

Rule 12(c), and all defendants -- including the Village of Turkey Creek -- moved

for summary judgment. The district court considered these motions together,

and concluded that plaintiffs did not meet their burden on summary judgment

with respect to the federal claims. Accordingly, the district court granted the

defendants’ motions for summary judgment as to the federal claims, dismissing

them with prejudice, and declined to exercise jurisdiction over the remaining

state-law claims, dismissing them without prejudice. Because the Village of

Turkey Creek’s motion for judgment on the pleadings dealt with the state-law

5

claims exclusively, the district court denied that motion. All parties, including

every defendant, made motions for reconsideration, with plaintiffs requesting

reconsideration of the ruling on the federal claims and defendants requesting

reconsideration of district court’s decision not to exercise supplemental

jurisdiction over the state-law claims. The district court granted the defendants’

motion and dismissed all of plaintiffs’ state-law claims with prejudice, and

denied plaintiffs’ motion to reconsider.

Plaintiffs timely appealed.

II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment de novo. Turner

v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). A party is

entitled to summary judgment only if “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). On a motion for summary judgment, the

court must view the facts in the light most favorable to the non-moving party

and draw all reasonable inferences in its favor. See Hockman v. Westward

Commc’ns, LLC, 407 F.3d 317, 325 (5th Cir. 2004). In reviewing the evidence,

the court must “refrain from making credibility determinations or weighing the

evidence.” Turner, 476 F.3d at 343.

III. DISCUSSION

The district court granted summary judgment to defendants on the

following claims, all of which plaintiffs have adequately briefed: (1) § 1983 false

arrest claims against Marcantel and Tarver arising from the August 2005 arrest;

(2) § 1983 excessive force claims against Marcantel and Tarver arising from the

August 2005 arrest (including a specific allegation against Tarver that he used

excessive force in applying the handcuffs too tightly); (3) § 1983 false arrest and

malicious prosecution claims against Marcantel arising from the May 2006

6

arrest; (4) a § 1983 claim against the Village of Turkey Creek; and (5) equivalent

claims under Louisiana law. Each claim is addressed in turn.2

A. False Arrest: August 2005 Arrest

To establish that the individual defendants violated Deville’s

constitutional rights by arresting her in August 2005, plaintiffs must show that

the officers lacked probable cause. See Haggerty v. Tex. S. Univ., 391 F.3d 653,

655 (5th Cir. 2004). “A warrantless arrest must be based on ‘probable cause.’

Probable cause exists when the totality of the facts and circumstances within a

police officer’s knowledge at the moment of arrest are sufficient for a reasonable

person to conclude that the suspect had committed or was committing an

offense.” Resenediz v. Miller, 203 F.3d 902, 903 (5th Cir. 2000). “If there was

probable cause for any of the charges made . . . then the arrest was supported by

probable cause, and the claim for false arrest fails.” Wells v. Bonner, 45 F.3d 90,

95 (5th Cir. 1995).

Turning to Deville’s false arrest claim against Tarver, Deville was charged

with three offenses: failure to sign a traffic ticket, resisting an officer, and

speeding. Plaintiffs have met their burden at summary judgment to show that

there is a genuine issue as to the material fact of whether Tarver lacked

probable cause to arrest Deville for those offenses. First, the relevant Louisiana

statute permits officers to make full-custody arrests of persons who refuse to

sign a traffic ticket, in lieu of issuing the usual citation. See La. Rev. Stat. §

32:391(B) (West. 2002).3 But the statute does not establish a criminal offense;

2

Plaintiffs have not presented argument on appeal for the following claims and issues:

(1) the unlawful arrest and malicious prosecution claims against Tarver based on the second

arrest; (2) the First Amendment; (3) the Ninth Amendment; (4) § 1985 and § 1986; and (5)

conspiracy under Louisiana Civil Code Art. 2324. These claims and issues are therefore

deemed waived. See In re Tex. Mortgage Services Corp., 761 F.2d 1068, 1073 (5th Cir. 1985).

Plaintiffs also concede that the claims against Marcantel and Tarver in their official capacity

should be treated as claims against the Village of Turkey Creek.

3

“If the person arrested holds a Louisiana operator’s license and gives his written

promise to appear at the time and place stated, the officer may release him from custody or

take him immediately before a magistrate, but shall not require the person arrested to deposit

7

it only establishes the procedure for arrests when a traffic offense has already

occurred. See id. In this case, there is a disputed issue of fact as to whether the

officers presented a ticket to Deville and, consequently, whether she refused to

sign it. Second, under Louisiana law, a person commits the offense of resisting

arrest only if he resists a “lawful arrest”; that is, an arrest supported by probable

cause. See La. Rev. Stat. § 14.108(A) (West 2004); State v. Lindsay, 388 So.2d

781, 782 (La. 1980) (“It is a long-established principle in Louisiana law that a

citizen has the right to resist an unlawful arrest.”). Thus, whether Deville was

lawfully arrested depends on whether Tarver had probable cause to conduct an

arrest at all. If not, then any resistance by Deville was lawful and did not

constitute “resisting arrest.” See Lindsay, 388 So.2d at 782.

An officer may conduct a warrantless arrest based on probable cause that

an individual has committed even a minor offense, including misdemeanors. See

Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). Tarver stated in his

deposition testimony that he detected Deville going 50mph in a 40mph zone

using his radar gun, which he said he was operating correctly.4 Plaintiffs have

offered Deville’s deposition testimony, in which she testified that she was in fact

not speeding, as evidenced by the fact that she set her vehicle’s cruise control at

the 40mph speed limit. However, evidence that the arrestee was innocent of the

crime is not necessarily dispositive of whether the officer had probable cause to

conduct the arrest because “probable cause requires only a probability or

substantial chance of criminal activity, not an actual showing of such activity.”

his operator’s license. Any such person refusing to give the written promise to appear shall be

taken immediately by the arresting officer before the nearest or most accessible magistrate

having jurisdiction. Any person who willfully violates his written promise to appear shall be

punished as provided in R.S. 32:57.1, regardless of the disposition of the charge upon which

he was arrested originally. The arresting officer shall fully inform the arrested person of the

consequences of failing to honor a written promise to appear pursuant to R.S. 32:57.1.”

4

Marcantel verified that the radar gun in Tarver’s cruiser was working in August 2005.

He also noted that the radar gun became inoperable approximately one year earlier, but that

it had been fully repaired by the time of Deville’s first arrest.

8

See Illinois v. Gates, 462 U.S. 213, 244 n.13 (1983). Thus, Tarver’s

uncontradicted testimony that his radar gun indicated that Deville was speeding

could establish probable cause for the arrest. See United States v. Coney, 456

F.3d 850, 857 (8th Cir. 2006).

Plaintiffs, however, have provided evidence that would allow the jury to

disbelieve Tarver’s testimony. “[A] motion for summary judgment cannot be

defeated solely by conclusional allegations that a witness lacks credibility.

Nevertheless, when the circumstances are conducive to lying, well-supported

suspicion of mendacity may serve as a legitimate basis for the factfinder’s

reasonable inferences concerning the ultimate facts at issue.” Thomas v. Great

Atl. & Pac. Tea Co., 233 F.3d 326, 331 (5th Cir. 2000) (footnote omitted).

Summary judgment is not appropriate when “questions about the credibility of

key witnesses loom . . . large” and the evidence could permit the trier-of-fact to

treat their testimony with “skeptical scrutiny.” Id. at 331.

Tarver admitted that he has a history of problematic arrests and that

citizens have made complaints against him. The Evangeline Parish Sheriff

asked him to resign his position as a sheriff’s deputy (which he held

simultaneously with his position with the Village of Turkey Creek) because of

a complaint of excessive force in an unrelated case. More directly implicating his

credibility, Tarver admits the parish district attorney asked him to resign from

the Turkey Creek police department because he filed a false charge of possession

of marijuana against an individual who in fact did not have marijuana (that

incident is also otherwise unrelated to the instant case).5 And although Tarver

testified that the radar gun had the ability to “lock-in” a detected speed, he did

not “lock-in” the speed in the Deville case -- and, as a result, he was unable to

verify the speed when asked by Deville’s husband to do so. In light of this

5

These events occurred after the events at issue in this case. See infra p.18-19. Prior

to his resignation from the Evangeline Parish Sheriff’s Office, Tarver worked

contemporaneously for both the Sheriff’s Office and the Village of Turkey Creek Police

Department on a part-time basis.

9

discrediting evidence -- especially evidence that Tarver has falsified other

charges -- and Deville’s sworn testimony that she was not speeding because her

cruise control was set on 40mph, a reasonable jury could disbelieve Tarver’s

testimony and find that he lacked probable cause for the first arrest.6

“Despite their participation in . . . constitutionally impermissible conduct,

Defendants may nevertheless be shielded from liability for civil damages if their

actions did not violate ‘clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Hope v. Pelzer, 536 U.S. 730, 739

(2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). There is no

doubt that it was clearly established in August 2005 that “[a]n arrest is unlawful

unless it is supported by probable cause.” Flores v. City of Placidos, 381 F.3d

391, 402 (5th Cir. 2004); see Blackwell v. Barton, 34 F.3d 298, 303 (5th Cir.

1994). An officer’s conduct is objectively reasonable “if a reasonable person in

their position could have believed he had probable cause to arrest.” Goodson v.

City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000). Thus, because there

are genuine issues as to the material facts of whether Deville was detected to

have been speeding, whether she was asked sign a traffic ticket and whether she

was validly exercising her established right under Louisiana law to resist an

unlawful arrest, we conclude that Tarver is not entitled to qualified immunity.

Turning to Deville’s false arrest claim against Marcantel stemming from

the August 2005 arrest, we affirm the district court’s grant of summary

judgment. We pretermit considering or deciding whether Marcantel unlawfully

arrested Deville because it is clear that his actions with respect to Tarver’s

6

Although we conclude infra that Marcantel is entitled to qualified immunity because

he relied on Tarver’s statements, that reliance does not make an otherwise unconstitutional

arrest lawful. See Whiteley v. Warden, 401 U.S. 560, 568-69 (1971) (holding that “an otherwise

illegal arrest cannot be insulated from challenge by the decision of the instigating officer to

rely on fellow officers to make the arrest”); see also Rogers v. Powell, 120 F.3d 446, 455-56 (3d

Cir. 1997) (holding that arrest was unsupported by probable cause but granting qualified

immunity to defendants who made the arrest in reliance on communications with other

officers).

10

initial arrest of Deville were not objectively unreasonable. “[W]here a police

officer makes an arrest on the basis of oral statements by fellow officers, an

officer will be entitled to qualified immunity from liability in a civil rights suit

for unlawful arrest provided it was objectively reasonable for him to believe, on

the basis of the statements, that probable cause for the arrest existed.” Rogers

v. Powell, 120 F.3d 446, 455 (3d Cir. 1997). Here, the uncontroverted evidence

shows that Tarver communicated the reason for the stop to Marcantel,

specifically relaying that Deville had been speeding and refused to sign the

traffic ticket. And there is no evidence that Marcantel had a reason to disbelieve

Tarver’s account at the time of the August 2005 arrest. Accordingly, Marcantel

could reasonably believe that Deville was speeding because he had an account

of criminal activity from a seemingly reliable witnessing officer.

B. Excessive Force

To establish a claim of excessive force under the Fourth Amendment,

plaintiffs must demonstrate: “(1) injury, (2) which resulted directly and only

from a use of force that was clearly excessive, and (3) the excessiveness of which

was clearly unreasonable.” Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir.

2005). Excessive force claims are necessarily fact-intensive; whether the force

used is “excessive” or “unreasonable” depends on “the facts and circumstances

of each particular case.” Graham v. Connor, 490 U.S. 386, 396 (1989); see also

Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (observing that this “area is one

in which the result depends very much on the facts of each case”). Factors to

consider include “the severity of the crime at issue, whether the suspect poses

an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Graham, 490

U.S. at 396.7

7

Plaintiffs’ § 1983 “excessive force claim is separate and distinct from [their] unlawful

arrest claim, and we must therefore analyze the excessive force claim without regard to

whether the arrest itself was justified.” See Freeman v. Gore, 483 F.3d 404, 417 (5th Cir.

2007).

11

Applying the Graham factors to this case, we conclude the district court

erred in granting summary judgment to defendants. Deville was stopped for a

minor traffic violation -- exceeding the 40 mph speed limit by 10mph -- making

the need for force substantially lower than if she had been suspected of a serious

crime. She testified that she was never asked to sign a traffic ticket, and

therefore never refused to sign one. According to Deville’s account of the stop,

there was no reason to believe that her actions posed a threat to the officers,

herself, or to her grandchild -- whom Deville testified was perfectly calm until

Marcantel began beating and breaking the car window. And, while she was in

control of the vehicle and its motor was running and its gear in park, she said

there was no evidence or other indication that she would flee or use the vehicle

as a weapon. Indeed, she told the officers that she was waiting for her husband

to arrive. Defendants have not argued on appeal that she actually attempted to

flee. Most importantly, there is a factual dispute over the nature of Deville’s

resistance. According to Deville’s version of events, her resistance was, at most,

passive in that she merely refused to leave her grandchild and exit the vehicle

until Mr. Deville came to get the child -- not that she affirmatively, physically

resisted as the officers contend.

Officers may consider a suspect’s refusal to comply with instructions

during a traffic stop in assessing whether physical force is needed to effectuate

the suspect’s compliance. See Mecham v. Frazier, 500 F.3d 1200, 1205 (10th Cir.

2007); Wertish v. Krueger, 433 F.3d 1062 (8th Cir. 2006). However, officers must

assess not only the need for force, but also “the relationship between the need

and the amount of force used.” See Gomez v. Chandler, 163 F.3d 921, 923 (5th

Cir. 1999). Taking the facts in the light most favorable to plaintiffs, a jury could

reasonably find that the degree of force the officers used in this case was not

justifiable under the circumstances. A reasonable jury could infer from Deville’s

deposition testimony that Marcantel engaged in very little, if any, negotiation

with her -- and find that he instead quickly resorted to breaking her driver’s side

12

window and dragging her out of the vehicle. The district court apparently

credited the officers’ statements that Deville’s endangerment of her grandchild’s

safety required a high degree of force. However, the cause of the child’s fear and

upset is genuinely in dispute; Deville testified that the child was quiet during

the stop, was not in danger, and only became distressed when the officers began

using force. Both parties’ experts agree that continued negotiations are more

appropriate than actual force where the suspect is only stopped for a minor

traffic offense and is making no attempt to flee. To the extent the officers claim

they needed to use force to prevent Deville from fleeing or using the vehicle as

a weapon, Deville testified that the car’s motor was running but that she never

put the vehicle in gear.8 And it is undisputed that Deville told the officers she

was waiting for her husband to arrive, indicating that she was not going to flee.

Finally, the jury could view the severity of Deville’s injuries as evidence

of excessive force. “In evaluating excessive force claims, courts may look to the

seriousness of injury to determine ‘whether the use of force could plausibly have

been thought necessary, or instead evinced such wantonness with respect to the

unjustified infliction as is tantamount to a knowing willingness that it occur.’”

Brown v. Lippard, 472 F.3d 384, 386-87 (5th Cir. 2006) (quoting Whitley v.

Albers, 475 U.S. 312, 321 (1986)). Thus, “the extent of [the] injury inflicted” may

be considered in determining whether the officers used excessive force. Whitley,

475 U.S. at 321 (internal quotation marks omitted); see Jones v. Buchanan, 325

F.3d 520, 530 (4th Cir. 2003). The day after the arrest, Deville visited a doctor

who observed contusions to both wrists, neuropathy of her hands, right shoulder

strain, left shoulder bruising (with hand prints), and multiple cuts caused by

broken glass (with one on her forehead). A week later, she visited her doctor

complaining of left elbow and jaw pain, resulting from the arrest. Deville also

8

Indeed, it is understandable that Deville would need to leave the vehicle running in

order to keep the temperature cool for her infant grandchild, as the stop occurred in August

in central Louisiana.

13

complained in her deposition testimony of chronic, lasting injuries to her right

elbow caused by the arrest. She also suffered neuropathy in her hands and

fingers, which required four surgeries and multiple other injections. She

testified that she missed 13 to 15 weeks of her work as a registered nurse

because of these injuries.

As to the allegation that Tarver used excessive force in that he applied the

handcuffs too tightly, we have held “that minor, incidental injuries that occur in

connection with the use of handcuffs to effectuate an arrest do not give rise to a

constitutional claim for excessive force.” Freeman v. Gore, 483 F.3d 404, 417 (5th

Cir. 2007). In Freeman, the plaintiff alleged that she “suffered bruising on her

wrists and arms because the handcuffs were applied too tightly,” and the court

found those injuries were too minor to support an excessive force claim. Id. In

this case, Deville has provided evidence that the handcuffs were applied so

tightly as to cause long-term nerve damage that was severe enough to require

four surgeries. These injuries are not de minimis. Compare Tarver v. City of

Edna, 410 F.3d at 751-52 (holding that “‘acute contusions of the wrist’ and

psychological injury from being handcuffed” were de minimis and insufficient to

find excessive force). While the officers claim that she did not complain about

being cuffed too tightly and Tarver claims he used his finger to “double lock” the

cuffs, the injuries Deville sustained as well as her testimony that Tarver did not

perform the double-lock procedure create genuine issues as to these material

facts. Thus, in light of the other factual disputes outlined above, plaintiffs have

established the presence of material factual disputes regarding Tarver’s alleged

use of excessive force in applying the handcuffs.

Defendants contend they are entitled to qualified immunity on plaintiffs’

§ 1983 excessive force claims even if Deville has shown she was deprived of a

constitutional right. When the arrest occurred, Deville had a clearly established

right to be free from excessive force, Tarver v. City of Edna, 410 F.3d at 753-54,

and it was clearly established that the amount of force that the officers could use

14

“depend[ed] on the severity of the crime at issue, whether the suspect posed a

threat to the officer’s safety, and whether the suspect was resisting arrest or

attempting to flee,” Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008). Accepting

Deville’s version of events for summary judgment purposes, this case involved:

a traffic stop for a minor traffic offense unsupported by probable cause; Deville’s

passive resistance to being removed from her car and separated from her

grandchild, in compliance with her well-established rights under state law to

resist an unlawful arrest (i.e., an arrest unsupported by probable cause); the

officer’s threat of calling child protective services despite no indication that the

child was in distress or that Deville intended to flee; an officer who others said

smelled of alcohol beating on Deville’s driver’s window with a heavy flashlight

and breaking the window; a rough extraction of Deville from the vehicle by both

officers, causing a forceful blow to Deville’s abdomen; and handcuffs applied so

tightly that they caused severe nerve damage. These alleged facts are

sufficiently egregious to warrant a denial of qualified immunity because a

reasonable officer would have known that the degree of force was

unconstitutionally excessive under the circumstances. See Bush, 513 F.3d at

501. Accordingly, defendants are not entitled to qualified immunity on the §

1983 excessive force claims.

C. False Arrest and Malicious Prosecution: May 2006 Arrest

Plaintiffs next argue that the district court erroneously granted summary

judgment to defendants on their alleged constitutional violations stemming from

the May 2006 arrest. We disagree.

This court has held that the federal Constitution does not include a

“freestanding” right to be free from malicious prosecution. See Castellano v.

Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) (en banc). Instead, it must be shown

that the officials violated specific constitutional rights in connection with a

“malicious prosecution.” For example, “the initiation of criminal charges without

probable cause may set in force events that run afoul of the . . . Fourth

15

Amendment if the accused is seized and arrested . . . or other constitutionally

secured rights if a case is further pursued.” Id. at 953-54. However, these “are

not claims for malicious prosecution.” Id. at 954. Accordingly, plaintiffs’ claim

under § 1983 for “malicious prosecution” in respect to the May 2006 arrest is not

independently cognizable, and defendants are therefore entitled to summary

judgment on that claim.

Turning to plaintiffs’ May 2006 unlawful arrest claim, plaintiffs offer two

theories of liability: (1) that there was not probable cause to support the second

arrest, and (2) that Marcantel failed to conduct a reasonable investigation prior

to the arrest. Even if we assume that Marcantel made the May 2006 arrest

without probable cause, he nevertheless made the arrest pursuant to a valid

arrest warrant signed by a justice of the peace. “It is well settled that if facts

supporting an arrest are placed before an independent intermediary such as a

magistrate or grand jury, the intermediary’s decision breaks the chain of

causation for false arrest, insulating the initiating party.” Taylor v. Gregg, 36

F.3d 453, 456 (5th Cir. 1994); see also Murray v. Earle, 405 F.3d 278 (5th Cir.

2005) (“[W]hen a neutral intermediary, such as a justice of the peace, reviews

the facts and allows a case to go forward, such an act ‘breaks the chain of

causation.’” (quoting Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir. 1988))).

Despite review by an independent intermediary, the initiating party may be

liable for false arrest if the plaintiff shows that “the deliberations of that

intermediary were in some way tainted by the actions of the defendant.” Hand,

838 F.2d at 1428. Plaintiffs have not argued that defendants somehow tainted

the justice of the peace’s deliberations, meaning that review by that independent

intermediary relieves them of liability for the alleged false arrest, and the

district court thus properly granted summary judgment to them on this claim.

Finally, plaintiffs have not pointed to any legal basis for asserting a claim

under § 1983 that Marcantel violated Deville’s constitutional rights by failing to

undertake a reasonable investigation. Accordingly, defendants are entitled to

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summary judgment on this “unreasonable investigation” claim. See Shields v.

Twiss, 389 F.3d 142, 150-51 (5th Cir. 2004) (“Regarding Shields’s ‘unreasonable

investigation’ claim, Shields has pointed to no legal basis for a § 1983 action of

this sort, and the court knows of none. Hence, this claim also fails.”).

D. Municipal Monell Liability

Plaintiffs next assert that the district court erred in granting summary

judgment to the Village of Turkey Creek on their § 1983 claims. We disagree

and thus affirm the district court on this issue.

Plaintiffs have argued that the Village of Turkey Creek is liable for its

deliberately indifferent failure to adequately train and supervise Marcantel and

Tarver. Respondeat superior does not apply to municipalities for claims under

§ 1983. Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978). Rather, a

municipality is liable under § 1983 only if its “execution of a government’s policy

or custom, whether made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the injury.” Id. at 694. The

plaintiff can prove the existence of a municipal policy through, inter alia, the

actions of the municipality’s legislative body or an individual with final

decisionmaking authority. Pembaur v. City of Cincinnati, 475 U.S. 469, 480,

483-84 (1986). The plaintiff can also prove the existence of a municipal custom

by pointing to a “persistent, widespread practice of city officials or employees,

which, although not authorized by officially adopted and promulgated policy, is

so common and well settled as to constitute a custom that fairly represents

municipal policy.” Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984)

(en banc).

In City of Canton v. Harris, 489 U.S. 378 (1989), a case specifically

involving the training of police officers, the Court held that a municipality can

be liable under § 1983 for failing to train its employees. Id. at 387. However,

the “inadequacy of police training may serve as the basis for § 1983 liability only

where the failure to train amounts to deliberate indifference to the rights of

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persons with whom the police come into contact.” Id. at 388. The Court further

elaborated that “[o]nly where a failure to train reflects a ‘deliberate’ or

‘conscious’ choice by a municipality -- a ‘policy’ as defined by our prior cases --

can a city be liable for such a failure under § 1983.” Id. at 389. We have

extended City of Canton to cover a plaintiff’s allegations that the municipality

failed to properly discipline its employees. See Piotrowski v. City of Houston, 237

F.3d 567, 591 (5th Cir. 2001) (“Self-evidently, a City policy of inadequate officer

discipline could be unconstitutional if it was pursued with deliberate indifference

toward the constitutional rights of citizens.”).

First, the evidence shows that Tarver has had only one other excessive

force complaint against him (the unrelated excessive force complaint that led to

his resignation from his position as a sheriff’s deputy), which was filed after the

Deville incident. The district attorney asked him to resign his position as a

Turkey Creek officer for making a false charge after the Deville incident as well.

Deputy Adam Fruge of the Evangeline Parish Sheriff’s Department knew Tarver

as a former colleague with the Sheriff’s Department and through Fruge’s

interaction with Turkey Creek officers. He testified that Tarver was hard to

work with because he had a “quick temper” and used force on a couple of

occasions when Fruge would have taken different action. Fruge also noted that

Tarver may have been untruthful while testifying in court on a prior occasion.

However, there is no indication in Fruge’s testimony that anyone other than

Fruge knew of these problems, or that the Village or the relevant policymakers

knew about them. Finally, as to Marcantel, Marcantel testified that he was once

the subject of an anonymous complaint, filed with the state troopers, that he

smelled of alcohol on a traffic stop. According to Marcantel, the troopers

investigated immediately and found that he had not been drinking.

At bottom, plaintiffs have not introduced evidence that would permit a

jury to find that the Village of Turkey Creek acted with deliberate indifference

towards Deville’s constitutional rights in failing to discipline these officers.

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There is no evidence that formal complaints were filed against them before the

Deville incident, despite Fruge’s concerns about Tarver’s performance, and there

is no evidence that the village or the relevant decisionmakers knew about those

problems. Thus, plaintiffs have not shown that the Village’s alleged failure to

discipline the officers was undertaken with “deliberate indifference to the ‘known

or obvious consequences’ that constitutional violations would result.”

Piotrowski, 237 F.3d at 579, 581 (quoting Bd. of County Comm’rs of Byran

County v. Brown, 520 U.S. 397, 407 (1997)); see also Scott v. Moore, 114 F.3d 51,

54-55 (5th Cir. 1997) (en banc) (finding no genuine issue regarding city’s alleged

deliberate indifference when there was “no showing that the city had actual

knowledge” that its actions created a risk of harm to the plaintiff and had

received no prior complaints regarding the tortfeasor-employee). Accordingly,

the district court did not err in granting summary judgment to the Village of

Turkey Creek on plaintiffs’ § 1983 claims.

E. Claims Under Louisiana Law

Plaintiffs have alleged and briefed the following state-law claims against

Tarver and Marcantel: (1) false arrest and imprisonment, (2) excessive force and

battery; and (3) malicious prosecution. Plaintiffs have also asserted a vicarious

liability claim against the Village of Turkey Creek. These claims are addressed

in turn.

1. False Arrest and Imprisonment

Under Louisiana law, “[f]alse arrest and imprisonment occur when one

arrests and restrains another against his will without a warrant or other

statutory authority. Simply stated, it is restraint without color of legal

authority.” Kyle v. City of New Orleans, 353 So.2d 969, 971 (La. 1977). A

facially valid arrest warrant immunizes the officers from false arrest and

imprisonment claims, thus precluding plaintiffs from maintaining this claim

based on the second arrest. See Deville v. Jefferson Parish Sheriff’s Dep’t, 762

So.2d 641, 643 (La. Ct. App. 2000); Rodriguez v. Deen, 759 So.2d 1032, 1035 (La.

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Ct. App. 2000); Molette v. City of Alexandria, 2005 WL 2445432, at *8 (W.D. La.

2005). As to the first arrest, the officers had statutory authority for the arrest

only if they had probable cause. Louisiana Code of Criminal Procedure article

213 provides that “a law enforcement officer may arrest a person without a

warrant when that officer has ‘reason to believe that the person to be arrested

has committed an offense.’” State v. Smith, 960 So.2d 369, 375 (La. Ct. App.

2007). This requires that an officer have probable cause for the arrest. See State

v. Hathaway, 411 So.2d 1074, 1078-79 (La. 1982). As discussed above, viewing

the evidence in the light most favorable to plaintiffs, Tarver lacked probable

cause for the first arrest. Accordingly, the district court also erred in granting

summary judgment to Tarver on plaintiffs’ state-law false arrest and

imprisonment claim, insofar as it relates to the August 2005 arrest.

As to Marcantel’s liability for the August 2005 arrest, we believe the

decision in Kyle is instructive. Kyle involved false arrest and imprisonment

claims asserted against two police officers who, relying on information

communicated to them by two security guards, arrested the plaintiffs on

suspicion that they had committed an armed robbery. See Kyle, 353 So.2d at

972. The Louisiana Supreme Court held that the officers could not be held liable

for false arrest and imprisonment because “the statements [of the security

guards] gave the officers reasonable cause to believe that [the plaintiffs] had

robbed the supermarket.” Id. Similarly, in this case, the uncontroverted

evidence shows that Marcantel relied on the seemingly reliable statements of

officer Tarver as to Deville’s speeding and refusal to accept a ticket. There is no

evidence establishing that, at the time of the arrest, Marcantel had reason to

disbelieve Tarver’s description of the criminal activity, or to question his reasons

for arresting Deville. Accordingly, under Kyle, the district court did not err in

granting summary judgment to Marcantel on plaintiffs’ state-law false arrest

and imprisonment claim.

2. Excessive Force/Battery

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Louisiana’s excessive force tort mirrors its federal constitutional

counterpart. “The use of force when necessary to make an arrest is a legitimate

police function. But if the officers use unreasonable or excessive force, they and

their employer are liable for any injuries which result.” Kyle, 353 So.2d at 972.

“Whether the force used is reasonable depends upon the totality of the facts and

circumstances in each case,” and factors to consider are: (1) the known character

of the arrestee, (2) the risks and dangers faced by the officers, (3) the nature of

the offense involved, (4) the chance of the arrestee’s escape if the particular

means are not employed, (5) the existence of alternative methods of arrest, (6)

the physical size, strength, and weaponry of the officers compared to the

arrestee, and (7) the exigencies of the moment. Id. at 973. These considerations

are sufficiently similar to the Graham factors that our decision on this claim

mirrors our decision of plaintiffs’ § 1983 excessive force claim, and we thus

reverse the district court’s grant of summary judgment to defendants on the

state-law excessive force/battery claim. See Penn v. St. Tammany Parish

Sheriff’s Office, 843 So.2d 1157, 1159-60 (La. Ct. App. 2003).9

3. Malicious Prosecution

Plaintiffs have also asserted a state-law claim against Marcantel alleging

that he engaged in malicious prosecution in connection with the second arrest

and subsequent charges. Unlike federal law, Louisiana recognizes a cause of

9

Although plaintiffs’ federal excessive force claim does not depend on the

constitutionality of the underlying arrest, see Freeman, 483 F.3d at 417, that principle does

not apply to their state-law excessive force and battery claims. Louisiana law authorizes only

that “the person making a lawful arrest may use reasonable force to effect the arrest and

detention.” La. Code Crim. P. art. 220 (emphasis added). “If the arrest is unlawful then all

force used to effectuate the arrest is excessive and constitutes a battery.” LeBauve v. State,

618 So.2d 1187, 1193 (La. Ct. App. 1993); see also Ross v. Sheriff of Lafourche Parish, 479

So.2d 506, 510 (La. Ct. App. 1985) (“The jurisprudence . . . establishes that the physical attack

of a private citizen by a police officer absent a valid arrest constitutes a battery.”). As noted

above, an unlawful arrest is an arrest lacking probable cause. Martin v. Michael J.

Neustrom, 967 So.2d 550, 552 (La. Ct. App. 2007). Because we have found that the evidence

taken in the light most favorable to plaintiff shows the first arrest was unlawful (i.e., without

probable cause), then any force used by the officers constituted a battery under state law.

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action for malicious prosecution. See Jones v. Soileau, 448 So.2d 1268, 1271 (La.

1984). The elements of the cause of action are: (1) the commencement or

continuation of an original criminal or civil proceeding; (2) its legal causation by

the present defendant in the original proceeding; (3) its bona fide termination in

favor of the present plaintiff; (4) the absence of probable cause for such

proceeding; (5) the presence of malice therein; and (6) damage conforming to

legal standards resulting to plaintiff. Id.

The district court’s decision to grant summary judgment on this claim was

proper for the following reasons. Plaintiffs must prove that the proceeding

ended in a “bona fide termination” in Deville’s favor. A procedural dismissal of

the charges, even if the dismissal is with prejudice, does not satisfy that element

of the cause of action. See Savoie v. Rubin, 820 So.2d 486 (La. 2002). Rather,

the element requires “that the underlying litigation . . . be brought to a

conclusion on the merits.” Id. at 488. It is undisputed that the parish district

attorney exercised his power to nolle prosse the charges, which is a procedural

dismissal of the charges without prejudice -- not a bona fide termination in the

10

defendant’s favor.

4. Vicarious Liability

Plaintiffs claim the Village of Turkey Creek is vicariously liable for the

officers’ tortious conduct. Municipalities do not enjoy special protection from

vicarious liability under Louisiana law and are subject to respondeat superior

like every other employer. See Brasseaux v. Town of Mamou, 752 So.2d 815 (La.

2000). “Although an employment relationship may in fact exist, the employer

will not be liable for the substandard conduct of the employee unless the latter

can be fairly said to be within the course and scope of employment with the

10

“The district attorney has the power, in his discretion, to dismiss an indictment or

a count in an indictment, and in order to exercise that power it is not necessary that he obtain

consent of the court.” La. Code Crim. P. 691. “Dismissal by the district attorney of an

indictment or of a count of an indictment, discharges that particular indictment or count. The

dismissal is not a bar to a subsequent prosecution . . . .” La. Code Crim. P. 693.

22

former.” Id. at 820. The district court did not reach the question of whether the

Village of Turkey Creek is vicariously liable, concluding that it was entitled to

summary judgment because plaintiffs failed to sustain their state-law claims

against the individual defendants. Because this conclusion was in error, we

reverse. On remand, should the district court reach the issue of the Village of

Turkey Creek’s vicarious liability, it should then consider in the first instance

whether Marcantel and Tarver were acting within the scope of their employment

such that the Village can be held liable for plaintiffs’ viable state-law claims

against the individual defendants.

IV. CONCLUSION

For the foregoing reasons, we reverse the district court’s grant of summary

judgment to defendants on the following claims: (1) the § 1983 false arrest claim

against Tarver arising from the August 2005 arrest; (2) the § 1983 excessive

force claims against Marcantel and Tarver arising from the August 2005 arrest;

and (3) the claim against Tarver under Louisiana law for false arrest and

imprisonment arising from the August 2005 arrest; (4) the claim against

Marcantel and Tarver under Louisiana law for excessive force/battery; and (5)

the vicarious liability claim under Louisiana law against the Village of Turkey

Creek. We affirm the district court’s grant of summary judgment to defendants

in all other respects. Accordingly, we remand this case to the district court for

further proceedings consistent with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.

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